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THE STATE BANK OF VIETNAM

THE STATE BANK OF VIETNAM

CIRCULAR No. 08/1998/TT-NHNN7 OF SEPTEMBER 30, 1998 GUIDING THE IMPLEMENTATION OF DECISION No.173/1998/QD-TTg OF SEPTEMBER 12, 1998 OF THE PRIME MINISTER

On September 12, 1998, the Prime Minister issued Decision No.173/1998/QD-TTg on the obligation to sell and the right to buy foreign currency(ies) of residents being organizations; the State Bank of Vietnam hereby, pursuant to Article 7 of that Decision, guides the implementation of that Decision as follows:

I. GENERAL PROVISIONS:

1. "Current revenue sources" are sources of revenues earned by residents from non-residents in forms of goods, services, incomes from direct investment, incomes from investment in valuable papers, interests on foreign loans and deposits, one-way money transfer and similar transactions.

2. "Revenues from capital transactions" are revenues from the transfer of capital into Vietnam, direct investment, investment in valuable papers, borrowing and retrieval of foreign loans, and other investment forms prescribed by Vietnamese law which increase the credit assets of the residents from non-residents.

3. "Financial supports and humanitarian aids" in this Circular are understood as non-refundable financial supports and aids from non-residents to residents.

4. The time to fulfill the selling obligation:

The time to fulfill the obligation to sell foreign currency(ies) currently available on deposit accounts of organization-residents shall be calculated from the effective date of Decision No.173/QD-TTg (September 12, 1998).

II. OBJECTS OF APPLICATION:

Subject to this Circular shall be:

1. State enterprises, private enterprises, companies, cooperatives and other economic organizations of all economic sectors of Vietnam, foreign-invested enterprises and foreign parties to business cooperation contracts which are supported by the Vietnamese Government in balancing their foreign currency(ies) and branches of foreign companies, foreign contractors, domestic contractors joining partnership with foreign ones (hereafter referred to as economic organizations).

2. State agencies, armed forces units, political organizations, socio-political organizations, social organizations, socio-professional organizations, social funds and charity funds of Vietnam, which operate in Vietnam (hereafter referred to as the non-profit organizations).

3. "Licensed banks" are banks based in Vietnam and licensed by the State Bank to carry out foreign exchange activities (hereafter referred to as banks).

III. CASES EXEMPT FROM THE OBLIGATION TO SELL FOREIGN CURRENCIES:

1. The following foreign currency amounts shall not be sold:

a) Revenue sources from financial supports and/or humanitarian aids according to treaties or agreements with foreign countries;

b) Revenues of the entrusted exporters under the entrusted export contracts (in this case, the entrusting parties shall have to fulfill the selling obligation and the entrusted parties shall have to sell revenues earned from entrustment charges;

c) Revenues earned from temporary import for re-export activities under contracts for goods purchase and sale with foreign countries (in this case, only profit earned from such operation shall be sold);

d) Down-payments, escrow deposits and/or advances made by non-residents and amounts collected on non-residents’ behalf;

e) Revenues earned from capital transactions.

2. Papers proving non-sale cases:

a) For Point 1(a): the originals or notarized copies of the treaties or agreements signed with foreign countries or papers related to the financial supports or humanitarian aids;

b) For Point 1(b): the originals or notarized copies of the entrusted export contracts between the entrusting and entrusted parties;

c) For Point 1(c): the originals or notarized copies of the goods purchase and sale contract signed between parties and the Ministry of Trade’s written permits for temporary import for re-export services;

d) For Point 1(d): the originals or notarized copies of the contracts which contain provisions on escrow deposits, downpayments or advances.

e) For Point 1(e): the originals or notarized copies of contracts or vouchers related to the revenues earned from capital transactions.

IV. THE OBLIGATION OF ORGANIZATION-RESIDENTS TO SELL FOREIGN CURRENCY(IES)

A. The obligation to sell foreign currency(ies) earned from current revenue sources which arise from September 12, 1998:

1. The prescribed selling percentages:

a) The economic organizations shall have to sell 80% of their foreign currency amounts earned from current revenue sources to the banks within 15 (fifteen) working days from the date such foreign currency(ies) are credited to their deposit accounts.

b) The non-profit organizations shall have to sell all their foreign currency amounts earned from current revenue sources to the banks within 15 (fifteen) working days from the date such foreign currency(ies) are credited to their deposit accounts.

2. The selling procedures:

a) When foreign currency(ies) earned from current revenue sources of organization-residents are credited to their deposit accounts, the banks shall have to immediately deduct the foreign currency amounts which must be sold as prescribed from such revenue sources and transfer them to "custody" accounts, and at the same time notify their clients of the foreign currency amounts which must be sold, so that procedures for selling foreign currency(ies) can be carried out.

Organization-residents with current revenue sources which shall not be sold as stipulated in Point 1, Part III of this Circular shall send to the banks, where they opened foreign currency accounts, vouchers defined in Point 2, Part III to prove that such revenue sources are exempt from being sold. The banks shall, after receiving vouchers proving the non-sale foreign currency revenue sources, have to return such foreign currency amounts to the organizations’ deposit accounts.

b) Within 15 (fifteen) working days from the date foreign currency amounts are credited to the deposit accounts, if the above-said organizations fail to sell foreign currency amounts to the banks as prescribed or fail to produce vouchers proving the non-sale revenue sources, the banks shall send notices reminding the organizations to fulfill their obligation to sell foreign currency(ies) within 5 (five) subsequent working days.

Past above-said 5-day time limit, if the organizations still fail to fulfill the obligation to sell their foreign currency amounts, the banks shall buy the foreign currency amounts kept on the "custody" accounts.

c) Within 15 (fifteen) working days from the date the foreign currency amounts are credited to the deposit accounts, organizations that need foreign currency(ies) to pay for transactions when they become due shall be entitled to use the credit balance currently available on their deposit accounts for that purspose. If the credit balance on deposit accounts is not enough to pay for such transactions, the banks shall allow the organizations to use the foreign currency amounts on the "custody" accounts to pay the deficit, after the organizations produce all relevant papers.

d) The organizations having foreign currency amounts on the "custody" accounts shall be allowed to sell such amounts to other banks after producing foreign currency selling and buying contracts already signed with such banks.

B. The obligation to sell foreign currency(ies) earned from current revenue sources before the effective date of Decision No.173/1998/QD-TTg (September 12, 1998) of which the credit balance is available on deposit accounts

1. The prescribed selling percentages:

a) By the end of October 5, 1998 at the latest, the economic organizations shall have to sell to the banks 80% of their foreign currency amounts earned from current revenue sources before September 12, 1998, which are still reflected on the deposit account credit balance.

b) By the end of October 5, 1998 at the latest, the non-profit organizations shall have to sell to the banks all their foreign currency amounts earned from current revenue sources before September 12, 1998, which are still reflected on the deposit account credit balance.

2. The selling procedures:

a) The banks shall have to determine the volume of foreign currency(ies) earned from the revenue sources arising before September 12, 1998 (including those other than current revenue sources) and still remaining on the credit balance of deposit accounts of the economic organizations and/or non-profit organizations, and promptly transfer the above-said determined foreign currency amounts from the deposit accounts to "custody" accounts according to the following percentage: 80% of the determined foreign currency amounts for economic organizations, and 100% for non-profit organizations. At the same time, the banks shall have to promptly notify the organizations thereof so that the latter can fulfill the foreign currency selling obligation by the end of October 5, 1998 at the latest.

b) Until before October 5, 1998, the organizations having non-sale foreign currency revenue sources as stipulated in Point 1, Part III shall have to send vouchers and complete proving such revenue sources according to guidance in Point 2 Part III to the banks where they opened accounts.

The banks shall calculate the foreign currency amounts which must be sold by organizations, as follows:

- For economic organizations

A = (B - C) x 80%

- For non-profit organizations

A = B - C

In which:

A: The foreign currency amounts which must be sold;

B: The credit balance from revenue sources arising before September 12, 1998, which is available on the deposit account at the end of September 30, 1998;

C: The foreign currency amounts which must not be sold as stipulated.

The banks shall compare the foreign currency amounts which must be sold (A) with those on the "custody" accounts. If the must-be-sold foreign currency amounts are smaller than those on the "custody" accounts, the banks shall buy such must-be-sold foreign currency amounts and return the difference to the organizations’ deposit accounts.

c) After October 5, 1998, if the organizations still fail to sell their foreign currency amounts to the banks, the banks shall buy the foreign currency amounts on the "custody" accounts according to obligation stipulated in Point 4 of Decision No.173/1998/QD-TTg of September 12, 1998 of the Prime Minister.

d) Until before October 5, 1998, organizations that need foreign currency(ies) to pay for transactions which become due shall be entitled to use the credit balance available on their deposit accounts for such purpose. If the credit balance on deposit accounts is not enough to pay for such transactions, the banks shall allow the organizations to use the foreign currency amounts on the "custody" accounts to pay the deficit, after the organizations produce all relevant papers.

e) Organizations that have must-be-sold foreign currency amounts on the "custody" accounts shall be allowed to sell such foreign currency amounts to other banks after producing foreign currency purchase and sale contracts already signed.

V. THE RIGHT OF THE ORGANIZATION-RESIDENTS TO BUY FOREIGN CURRENCY(IES)

1. Residents that have a demand for foreign currency(ies) to meet the requirements of their current transactions and other licensed transactions as prescribed shall be entitled to buy foreign currency(ies) at the licensed banks, provided that they can produce valid papers and vouchers to the banks.

2. When buying foreign currency(ies) to fulfill due payment obligations in their current transactions or other licensed transactions, the organization-residents shall have to produce the originals or notarized copies of the following valid papers and vouchers to the banks:

a) For payments for imported goods and/or services to foreign parties: the goods and/or service import contracts with foreign parties; the import permits issued by the Prime Minister (for goods items on the list of goods banned from import), or permits or quotas issued by the Ministry of Trade or the specialized managing ministry (for import of goods items on the list of goods subject to the conditional import); the establishment decisions, business registrations and complete voucher sets comprising letters of credit (if any), invoices, bills of lading and vouchers relating to import of goods and services, are required;

b) For payments for entrusted export and/or import of goods and services to the organizations undertaking the entrusted export and/or import: the entrusted export and/or import contracts and vouchers relating to entrusted export and/or import are required;

c) For reimbursement of compensations related to export of goods and services: the goods and service export contracts, payment notices, written complaints, minutes and papers relating to the settlement of disputes and/or complaints are required;

d) For transfer of deposits for bidding abroad: the relevant contracts, papers and vouchers relating to the bidding abroad are required;

e) For expenses for exhibitions, advertising, commercial and training programs: the relevant contracts, written approvals by competent agencies, payment notices sent from abroad and other relevant papers are required;

f) For remittance of international organizations’ membership fees and registration fees for international meetings: the written ratification of the competent agencies and other relevant papers are required;

g) For expenses relating to fees and spendings on the setting up and operation of representative offices in foreign countries: the competent agencies’ approvals permitting the setting up of such offices in foreign countries and the papers relating to the fees and expenditures of such offices are required;

h) For expenses relating to the registration of trademarks and copyright, or the utilization of invention patents and consultancy services: the relevant contracts and other papers relating to the payments to foreign countries must be produced;

i) For expenses relating to the sending of individuals working in organization-residents abroad for work, study, survey, symposium...: the competent agencies’ papers permitting the overseas trip, papers relating to the payments made in foreign countries and other relevant papers must be produced;

j) For the transfer of legal capital and re-investment capital abroad by foreign investors investing in Vietnam: the written liquidation records of the investment licensing agencies, the reports on fulfillment of financial obligations toward the Vietnamese State which are certified by the competent tax agencies and other relevant papers are required;

k) For the transfer of profits abroad by foreign investors investing in Vietnam: the financial reports with the certification by auditing agencies, the written profit-sharing report of the managing boards (for foreign-invested enterprises being joint ventures), the competent tax agencies’ certification that the financial obligations toward the Vietnamese State have been fulfilled, the reports on liquidation of enterprises or business cooperation contracts which are ratified by the investment licensing agencies (if the foreign investors transfer profits upon the expiry or dissolution), and other relevant papers are required;

l) For the repayment of foreign loan capital: the approved loan contracts and other relevant contracts are required;

m) For other current transactions: the banks shall specify the vouchers necessary for foreign currency purchase on case-by-case basis.

3. The purchase of foreign currency(ies) by foreign-invested enterprises and foreign parties to business cooperation contracts, which are not supported by the Vietnamese State in balancing their foreign currency demands, shall be effected according to the current regulations.

4. Organization-residents subject to Decision No.37/1998/QD-TTg of February 14, 1998 which sold foreign currency(ies) to banks before the effective date of Decision No.173/1998/QD-TTg shall, within 6 (six) months from the date of selling foreign currency(ies) under Decision No.37/1998/QD-TTg, be entitled to buy back the foreign currency amounts previously sold to banks.

VI. FOREIGN CURRENCY PURCHASE AND/OR SALE WITH THE STATE BUDGET

The State Bank of Vietnam shall coordinate with the Ministry of Finance in specifying the opening of foreign currency accounts and foreign currency purchase and/or sale of the State budget.

VII. THE RESPONSIBILITIES OF BANKS

The banks, when purchasing and/or selling foreign currency(ies) as stipulated in this Circular with their clients, shall have to strictly comply with the following regulations:

1. To guide, urge and notify the organization-residents to fulfill their obligation to sell foreign currency(ies) to banks; and purchase foreign currency(ies) as stipulated in this Circular;

2. To satisfy the foreign currency demands of organization-residents as stipulated in Part V of this Circular to the extent of the actual value of payments made by such clients and shall sell foreign currency(ies) to the clients only when the payments become due. Particularly, the sale of foreign currency(ies) for making payments for capital transactions shall be effected according to the current regulations;

3. To post up the buying and selling rates according to the State Bank’s regulations, the posting up of exchange rates shall be considered a commitment on foreign currency transactions with the clients;

4. To accurately report daily to the Central State Bank on the foreign currency amounts bought and sold in the day, thus ensuring the maintenance of the foreign exchange status or Vietnam Dong status, and conduct the purchase and/or sale of foreign currency(ies) with the clients, other licensed banks and the State Bank on the inter-bank market to meet the legitimate demand of the clients and ensure that the foreign exchange status at the end of the day be maintained within the prescribed limit.

5. To detect the violation acts committed by banks or organization-residents against the stipulations of this Circular and inform the Central State Bank thereof so that the latter takes handling measures.

VIII. THE RESPONSIBILITIES OF ORGANIZATION-RESIDENTS:

1. To strictly make the sale of foreign currency(ies) according to provisions of this Circular;

2. To produce all vouchers as prescribed and reasonably required by the banks;

3. To make truthful declarations according to provisions of this Circular;

4. To detect banks’ or organization-residents’ violations of provisions of this Circular and inform the Central State Bank thereof so that the latter takes handling measures.

If the above-said banks and organization-residents commit violations of provisions of this Circular, they shall, depending on the seriousness of the violations, be handled according to the Ordinance on Handling of Administrative Violations, suspended from foreign exchange business operations or deprived of their operation licenses. If they commit serious violations, they shall be examined for penal liability.

IX. IMPLEMENTATION PROVISIONS:

1. This Circular takes effect from September 30, 1998. All previous stipulations on foreign exchange management which are contrary to this Circular are now annulled.

2. The heads of departments and bureaus, the chief of the office and the chief inspector of the Central State Bank, the directors of the provincial/municipal State Bank branches, the general directors (directors) of the commercial banks, joint venture banks, joint-stock banks and foreign bank branches shall, within their respective functions, have to implement, organize and guide the implementation of this Circular.

3. The ministries, branches and agencies attached to the Government and the provincial/municipal People’s Committees shall, within their respective functions and tasks, have to coordinate with one another in implementing this Circular.

For the State Bank Governor

Deputy Governor

LE DUC THUY